Tuesday, December 15, 2015

I’ve been meaning to write for a while
about a insightful and timely article written by Michael Caster – “Matching
Resistance to Repression in China” – which was published on April 8, 2015
in Open Democracy. I now have no more excuses for procrastinating after police
actions were launched last week against Chinese labor activists in the southern
Chinese city of Guangzhou. To date, at least five activists have been
criminally detained, while others have been interrogated and released, and
computers confiscated from their offices[1].

What inspires me to write this post is not
the police action but the vigorous response by Chinese workers and civil
society activists, organizations and their supporters. Their firm, courageous
stance in the face of state power touches on the important question of how
civil society, particularly those working in authoritarian systems, should
respond to state repression. Borrowing insights from Caster’s article, I’d like
to propose some ways of thinking about this question. Recognizing the difficult
and unpredictable nature of civil society actions in hostile environments like
China, I hesitate to offer any hard and fast prescriptions. Instead, I’d like
to think of this post as the first in a series of meditations on the subject,
offering ways to rethink our response to state repression.

My starting point is an observation made by
Caster:

Throughout 2013 to 2014, I remember many
grassroots activists around China relating to me their perceptions that the
ferocity of government repression should be understood as steadily increasing
pressure, not as a swift crackdown. It is severe and inexcusable, without
question, but in this sense it is more similar to the ‘frog in boiling water’
folk tale than the sudden purges of past dictatorships.

I think this point deserves to be
highlighted and emphasized again and again. Repression should be seen not as a one-off
crackdown by an omnipresent state, but as a series of police and extrajudicial
actions to exert, in Caster’s words, “steadily increasing pressure” on civil
society. I’ve always disliked the word crackdown because it suggests an action
without any history or context or follow up. “Crackdown” is also a useful,
catch-all term used to refer to any seemingly repressive action by the state
ranging from unfriendly regulations to a police raid. But every crackdown has a
backstory, a history, and is part of a series of past and follow up actions by
the state and civil society. In addition, the word crackdown magnifies the
power of the state by suggesting that it has put an end to the activities of
the activists or NGOs in question. The June 4 crackdown on protestors in 1989
came close to this meaning, but the vast majority of “crackdowns” lack the
finality of June 4. Repression, harassment, raids, police actions all come to
mind as better alternatives to the term “crackdown”.

Borrowing a chess metaphor, the term
crackdown sees repression as as an endgame situation of getting to checkmate in
a few moves where one side emerges victorious and the other is
extinguished.But if we see repression
more as a series of actions designed to exert pressure on the activist or NGO,
then the more appropriate chess metaphor is that of a long endgame in which
both sides are seeking positional advantage. This latter situation is what we
are dealing with in post-1989 China.

A second point I would make is that repression should not be seen as
coming from a monolithic, all-powerful state, but from specific state actors. Given
the opacity of the Chinese state, it’s almost impossible to know with any
certainty where the order for the repression originated. But we do know enough
about the Chinese state to know that it is far from monolithic or unified, and
that there are many departments and localities within the state with different,
and even conflicting, interests and agendas. Decisions to harass or detain
activists or close down an NGO are made within this system and shaped by this
interest-based logic. We know that many actions against civil society over the
last two decades have come from local authorities or from specific departments
or individuals that view activists, NGOs, bloggers, lawyers and others as a
threat to their interests.

Changing our perception and naming of repression is
important because it recalibrates the challenges facing civil society activists
and supporters, and the bar for what they can achieve, to a more realistic and
human level. Magnifying the size and scope of the threat and the necessary
response might be good for getting people’s attention, but it does not
stimulate intelligent, strategic decision making. On the contrary, it can lead
activists to either overreach or make bad decisions, as in the case of the 1989
protests or the Occupy Central protests in Hong Kong, or to question whether
they can do anything at all.

As the Davids facing the Goliath of the
state, civil society needs to identify achievable goals that can lead to small
achievements that will instill confidence in, empower and unify citizens who
come together because they wish to and can act. At the same time, civil society
also needs to consider, discuss and debate how these goals will help to bring
about a long-term, strategic objective whether that objective be a vibrant and independent
civil society or a more equal and tolerant society or a democratic regime. In Caster’s words,

Rather than pursuing
tactics of sudden unrest and demanding high-profile victories, more can
arguably be achieved – especially within a high-capacity authoritarian regime such
as China – through strategic actions, producing limited but sustained
improvements.

Baby steps, as my wife said when I told her
about this post. Baby steps for a nascent civil society sounds about right, but
baby steps with a grown up vision.

Sunday, November 29, 2015

In an
earlier post on November 11 (Some
Good News Regarding the Overseas NGO Law Draft and the Long-Awaited Charity Law),
I discussed the first draft of the Charity Law which was released
for public comment at the end of October. Tomorrow (November 30) is the last
day to post comments on the draft so I thought I would provide some more thoughts on this draft.I was fortunate to be able
to attend a talk on Friday at the Chinese University of Hong Kong by Professor
Anthony Spires, who is an expert on Chinese civil society and has been
monitoring the Charity Law since it was first proposed almost 10 years ago, and
will include some of his commentary here.

In my
earlier post, I noted that the Charity Law draft, on the whole, provides a
positive, enabling environment for charitable organizations. The Overseas NGO Management Law draft, in
comparison, looks stifling and draconian. Professor Spires confirmed that
earlier drafts of the Charity Law did cover the activities of overseas
charitable organizations before a different division of labor was suddenly decided on late last year. The Charity Law would only address Chinese organizations and come
under the supervision of Civil Affairs, while activities of overseas NGOs would
be regulated by the Overseas NGO Law under the supervision of the Ministry of
Public Security.

My
earlier post examined three positive highlights of the Charity Law draft[1].Here, let me elaborate a bit more and add
some critical discussion of some of the language in this draft that I would
like to see revised.

One
highlight of the draft is that it upholds a quite expansive view of charity or
philanthropy to include the promotion of health, environmental protection and “other
activities consistent with the societal public interest”. Of course, we will
see have to see how this law is implemented, but the language here would theoretically
allow for work on HIV/AIDS, labor and legal advocacy to be considered charity.
That would be a big step in the right direction given the importance of the
term “charity” in Chinese discourse on civil society.

Second,
the draft appears to allow for the direct registration of charitable
organizations, thereby doing away with the old “dual management system” in
which NGOs had to find a professional supervising agency before they could
register with Civil Affairs. The language in the draft could be clearer on this
point, but an article
posted on the NPC’s website confirms that this is the intent. Article 9 states
that charitable organizations would also have to meet “other conditions
stipulated by law and administrative regulations” so it does it leave open the
possibility that other laws such as the Overseas NGO Law or the various
regulations for registration and management of social organizations would need
to be considered. There has also been talk about drafting a Social
Organizations Law that would address the registration and management of all
social organizations, not just charitable ones, but also trade and professional
associations, scientific associations, community organizations, among others. Given
that the Overseas NGO Law and other related regulations are currently being
drafted and revised, their impact on the Charity Law remains to be seen.

Third,
the last article in this draft law notes that “even when a non-profit
organization with the purpose of conducting charitable activities is not
registered, it can still conduct charitable activities within its limits, but
shall comply with the relevant provisions of this Law and benefit from relevant
rights and interests according to law.” As I said in my previous post, this
clause essentially says that unregistered NGOs should not be considered as
illegal and should be allowed to carry out charitable activities. That is a very
significant step forward from seeing such NGOs as illegal, and recognizes that
small, community groups or groups consisting of marginalized populations such
as sex workers may not have the capacity or desire to register but may still perform
an important societal purpose.

To these
positive highlights, Professor Spires adds a few more optimistic observations:

One is
contained in Article 24 which states that “charitable organizations can form professional
associations (hangye zuzhi). These professional organizations shall
reflect needs of the profession, promote professional, strengthen
professional self-discipline, raise the
credibility of the charity sector and promote the
development of charitable causes.” This article encourages something that used
to be discouraged which is for charitable organizations, NGOs to come together
to form networks and associations that can represent their interests and help
to develop the sector. One example that comes immediately to mind is the China
Private Foundation Forum (中国非公募基金会论坛) that was formed several years ago and meets
annually to promote discussions on developing and regulating the philanthropic
foundation sector. This type of self-regulation among charitable organizations
within the philanthropic sector is precisely the kind of regulation that the
Charity Law should be encouraging, while minimizing regulation by government
agencies.

Another
is that there is no corporatist language restricting the number of charitable
organizations or their scope of work. In past regulations, it was common to see
clauses that stated that only one social organization working on that issue
area was allowed to register within a given administrative area, or that a
social organization registered in an administrative area could only work within
that area. For example, an organization working on water pollution in Beijing
could not register if a similar organization was already registered in Beijing.
And if a water pollution organization was able to register in Beijing, it could
only legally work within the administrative borders of Beijing, even though
water pollution does not respect such borders.

Finally, Article
100 states that charitable organizations only need to submit an annual report.
Under past regulations, social organizations were required to go through an
annual review process. If they did not pass that review, then they could have
their registration annulled. Under this draft, charitable organizations only
have to submit a report to the Civil Affairs authorities; they do not need to
have that report approved by the authorities.

**************************************

While
this draft sets a good model for forthcoming legislation in the NGO sector, it
is not perfect. There are a number of areas for improvement if you want to dive
into the details. Here are a few of the major issues that stood out for me:

1) Chapter
3 of the draft addresses Charitable Fundraising and, following past practice,
separates charitable organizations into two classes: public fundraising (公募) and
non-public fundraising (非公募). The former are allowed to fundraise through
public channels such as television, radio, newspapers, setting up collection
boxes in public spaces, holding charitable performances, sales, competitions,
gala dinners, etc. The latter are only allowed to accept private gifts and
donations. Articles 25-26 in this chapter allows charitable organizations that
previously had public fundraising status to keep their privileged status, while
other organizations need to wait for a two-year period and show they operated
within the rules and have not violated the Charity Law.

This stipulation
sounds reasonable but it maintains a two-class system in which charitable
organizations with public fundraising status (most of these are GONGOs or NGOs
with government connections) are grandfathered in, while other organizations have
to prove their credentials. Yet the former are by no means deserving of that
status. In 2011, a number of scandals such as the Guo Meimeiincident rocked the philanthropic sector, and
all of them implicated public fundraising GONGOs such as the Chinese Red Cross
and the China Soong Chingling Foundation. These charitable organizations should
also have to prove their worth, and not automatically be given public
fundraising status simply because they are big, “professional” and have
government connections.

We also
should keep in mind that in the past, small, grassroots organizations doing
sensitive work can, and have been, cited by authorities for violating various
laws and regulations as a way to close these organizations down or discourage
them from continuing their work. In this context, charitable organizations that
have been cited for violating the law should not be automatically disqualified.
This draft states, to its credit, that Civil Affairs authorities will only
consider violations of this Charity Law rather than of other existing laws and
regulations, but still the authorities’ selective application of laws and
regulations to silence organizations doing more sensitive work should be kept
in mind; these organizations should be given a second chance to apply for
public fundraising status.

2) There
are also various references to the tax benefits of charitable organizations,
but these references should be made clearer in terms of which tax laws and
regulations apply since this is an area that is unclear not only to charitable
organizations but also to tax authorities. A great deal of work needs to be
done to raise awareness about, and simplify procedures, for obtaining tax
benefits for both charitable organizations and donors to those organizations.

3) There
is quite a bit of emphasis in this draft on transparency and information
disclosure, with an entire chapter (Chapter 7) devoted to this issue. While it
is understandable that charitable organizations should be accountable and
transparent, this draft goes too far in requiring charitable organizations to
report on how they use their donations. Articles 76 and 77 in particular,
require a level of reporting that would make it difficult for smaller,
grassroots organizations that lack staff to do report at this level. More
emphasis should be placed on self-discipline and self-regulation, and relying
more on professional associations and industry standards, and less on
government authorities, to regulate this area.

4)
Finally, the drafters need to be careful of using overly broad language such as
“endangering national security or the public interest” to justify
investigations of charitable organizations. Article 109, for example, states: “Where charitable organizations
engage in or fund activities that endanger national security or the public
interest, the relevant organs investigate in accordance with law, and where the
circumstances are serious, the civil affairs departments revoke registration
certificates; where a crime is constituted, pursue criminal responsibility in
accordance with law.”

***********************************

In conclusion, the Charity Law
draft is a promising piece of legislation. Too often, we see laws and
regulations issued seeking to discourage and restrict the tremendous interest
in philanthropic and public interest activities in Chinese society. With some
further revisions, this draft could set an important standard for legislation
that finally enables the development of the charitable, civil society sector in
China.

As Professor Wang Ming of
Tsinghua University said in his address earlier this month announcing the
launch of Tsinghua’s Institute of Philanthropy, we need to start thinking about
how best to develop philanthropy and civil society once this law passes. We
need to start thinking about what philanthropy and civil society in China will
look like in the post-Charity Law era.

Tuesday, November 24, 2015

This op-ed by Tim Hildebrandt appeared in the South China Morning Post
on November 9, 2015, soon after the Communist Party leadership announced they
would end the one-child policy and allow Chinese families to have two children.
With Tim’s permission, I’m reposting it here because it looks at the impact of
the one-child policy on one marginalized group in China that rarely gets much
consideration and yet is quite active in the NGO sector – the LGBT community.

End of
China's one-child policy will ease pressure on gays and lesbians to bear
children

The Communist Party intended to help
the struggling Chinese economy when it overturned the country's infamous
one-child policy last week. The decision to rescind the policy will undoubtedly
be welcomed by the country's growing middle class, the next generation of
Chinese who will now have the prospect of knowing what it means to have a
sister or brother, and corporations who are relishing an even larger market.
But one group that the party never considered is also likely to benefit:
China's lesbian, gay, bisexual and transgender (LGBT) community.

The one-child
policy never mentioned homosexuality. But its ill effects over the decades have
fallen disproportionately on the country's LGBT community. Numerous surveys of
gays and lesbians in the country consistently reveal that family pressure is of
utmost concern. Indeed, in the decade-long research I have conducted on these
issues in China, I found that gay and lesbian citizens consistently ranked
family pressure as the biggest obstacle they face. One chance at raising a
child who meets all of the expectations of parents put enormous burdens on gays
and lesbians, keeping them in the closet and contributing to high rates of
depression and suicide. The pressure to produce grandchildren is acute.

The desire for
grandchildren isn't, of course, limited to China. But the obsession often leads
to pressure on gay and lesbian children to conform to a heterosexual life and
produce offspring. In China, the
expectations for continuing the family line to fulfil ancestral obligations are
often extreme. Still, the push to be grandparents has as much to do with
material concerns as worries about the afterlife. In this respect, another
policy change in the last decade has created a decidedly material incentive for
families to pressure their only child into living a straight life and producing
a grandchild: the government's dismantling of cradle-to-grave support. Elderly
care, once guaranteed by the state, has been severely cut, partly because of
the assumption that one's children and their grandchildren can fill the gap
left by the state and take care of them. And so, in essence, the pressure that
gay and lesbian Chinese feel is not only due to the risk of hurting the
family's reputation, but something very material: the parents view a gay or
lesbian child as a potential threat to their care as they age. Because both in
vitro fertilisation and adoption are difficult, "traditional" and
"natural" male-female births are seen as the only option for parents.

In its 35-year
history, the one-child policy has long been used by government critics in the
international community as evidence of its callous view of human rights.
Activists have derided the effect it has had on unwanted pregnancies and
children: stories of sex-selective abortions, newborn girls abandoned in public
toilets, and even female infanticide have become regular news fodder. But Beijing's
decision has far more to do with demographic forces than human rights concerns,
whether they be concerned with forced abortions or social pressure on LGBT
people. The policy was intended to curb population growth that the party could
not afford while also developing a modern economy. It is being rolled back now
because, ironically, the government can't afford to keep it in place. With
fewer young people entering the workforce, the country is less able to support
the larger number of aged citizens.

The policy
shift will certainly not be an instant panacea for gays and lesbians. Family
pressures are likely to remain, and changing the policy will be too late for
the current generation of gay and lesbian young adults. Hopefully, the
possibility to have an "heir and a spare" will ease the pressure
placed on gay and lesbian Chinese, allowing them to live a more open and less
stressful adult life. Although it was not the intent of Beijing, easing
limitations on births should go far in helping to build a more respectful
environment for gays and lesbians across the nation.

Dr Timothy Hildebrandt is assistant professor of social policy and
development at the London School of Economics and Political Science. He is the
author of Social Organizations and the Authoritarian
State in China (Cambridge University Press, 2015), and researches and writes on LGBT activism and related policy issues in China
and around the world.

Sunday, November 22, 2015

When I was in Beijing this first week of
November, I had the opportunity to attend the Tsinghua International Conference
on Philanthropy （公益慈善国际研讨会）announcing
the opening of the Tsinghua University Institute for Philanthropy（公益慈善研究院）.The conference was held at the Wenjin International Hotel in the
Tsinghua Science Park on November 5, 2015.

True to the conference’s name, both overseas
and Chinese guests were invited. The international guests included the
president of the International Society for Third Sector Research (ISTR), the
dean of Indiana University’s Lilly School of Philanthropy, Chairman of the Asian
Venture Philanthropy Network (AVPN), chair of the Hong Kong Jockey Club Charities Program,
along with other academics and NGO representatives from Hong Kong, Macao and
Taiwan. The Chinese guests included officials from Tsinghua University, the
Ministry of Civil Affairs and the All-China Federation of Industry and
Commerce, the head of the One Foundation, and leading lights from the academic
world such as Wang Ming (the dean of China’s NGO studies and the Dean of the
Institute of Philanthropy), Deng Guosheng, Kang Xiaoguang from Renmin
University, Jin Jiping from Beijing University, Tao Chuangjin from Beijing
Normal University, and Zhu Jiangang from Sun Yatsen University.

For those steeped in the history of NGO
studies in China, the opening of the Institute is an important event because of
the place Tsinghua occupies in NGO studies. Tsinghua established one of the
earliest NGO Research Centers back in the late 1990s. That center published the
first Directory of Chinese NGOs in back in the early 2000s, and Tsinghua
scholars such as Wang Ming, Deng Guosheng, and Jia Xijin have played an instrumental
role in promoting the field of NGO studies, and in pushing for an enabling
regulatory environment for NGOs through their work. Currently the center
publishes China’s leading journal on NGOs, the China Nonprofit Review (中国非营利评论).

Notably, the Institute was set up jointly
by Tsinghua University and the Ministry of Civil Affairs.It will be directly under the university and
separate from the School for Public Administration and Policy which houses the
NGO Research Center. Unlike the School
for Public Administration and Policy, the Institute willnot have degree programs of its own. It is only
a research institute for now, although that may change in the future.

The themes of this two-day conference are
cross-boundary, innovation and sharing. Plenary session 1 addresses the essence
of philanthropy; session 2 examines borderless philanthropy; session 3looks at philanthropic innovation and the
market; and session 4 discusses the power of philanthropy. I was only able to stay for the opening
remarks, and had to miss the plenary sessions.

Toward the end of the opening remarks, the
Associate Dean of the Institute, Wang Chao (who spent much of his career in the
NGO world working for international NGOs such as World Wildlife Fund and World
Vision) introduced the Ci-Lab (“ci” as in philanthropy or charity) or Social
Innovation Lab which will be one of the Institute’s programs set up with the
aim of promoting innovative ideas, individuals and organizations and matching
innovators with resources.

The newly-issued Charity Law draft was on
the lips of a number of the opening speakers, including the Ministry of Civil
Affairs official who mentioned that the Charity Law draft is now available for
public comment and hoped that it would be passed quickly. Professor Wang Ming
also spoke about how the Charity Law would provide a more open environment for
philanthropy in China and asked the audience to reflect on what the
post-Charity Law era would bring for Chinese philanthropy.

Tuesday, November 17, 2015

In this second year of a sustained crackdown on civil society activists and
organizations in China, the environmental sector has been one of the few bright
spots. On January 1 of this year, the newly revised Environmental Protection
Law loosened restrictions on organizations that could sue polluters on behalf
of the public interest (so-called environmental public interest lawsuits) to
include qualified civil society organizations. Then in late February,
Chai Jing, a former CCTV investigative reporter, released her documentary
"Under the Dome" about China's smog crisis. That documentary
immediately went viral getting hundreds of millions of clicks just a few days
after going online.

Now we can add yet another example to this list. About two-and-a-half weeks
ago, on October 29, 2015, the Nanping Intermediate People's Court in China's
southeastern Fujian province issued a judgement in favor of two grassroots NGO
plantiffs: Beijing-based Friends of Nature and Fujian Green Home. These two
NGOs filed the lawsuit on the same day the Environmental Protection Law went
into effect. The defendant was a quarry company that had engaged in illegal
mining and damaged the surrounding forest. The company owners were ordered to
pay fines totaling 1.46 million yuan (US$230,000) in compensation for 'loss of
environmental benefits' and legal costs, and given five months to restore the
forest to its original state or face further fines.

Some may take exception to calling this a landmark case and they would have
a point. The term "landmark" can be abused and overused. What
constitutes a landmark case? Is this really a landmark case given that the
polluter is a merely a local quarry company, not a large state-owned
enterprise? Is it a landmark case given that we still are unsure if the court
ruling will be enforced by local authorities, and if the polluters will pay the
fine and clean up the forest as ordered? Is it a landmark case given that other
significant cases have preceded it? As Stanley Lubman points out in his very
informative blog,
an earlier "groundbreaking" lawsuit was filed last October by an
environmental association in Taizhou City in China's eastern Jiangsu province
against companies that were dumping waste acid into local rivers. The
intermediate court in Taizhou ended up fining the defendants U.S.$26 million —
the largest ever in a public interest lawsuit in China and much larger than the
fine levied in the Fujian case.

In an excellent
article in The Diplomat, Scott Wilson, who has researched citizen
participation in environmental governance, writes about the Taizhou case that
it should be seen as an example of the Chinese government seeking to control
the environmental litigation process. The Taizhou environmental association
that filed the lawsuit - the Taizhou Environmental Protection Federation
(TEPF)- had been founded as a government-organized NGO (GONGO) that same year
(the name is a dead giveaway as a local affiliate of the All-China
Environmental Federation, a GONGO established with the blessing of the Ministry
of Environmental Protection). The irony was that TEPF was able to file this lawsuit
under a recently-amended Civil Procedure Law which allowed "relevant
organizations" to file environmental public lawsuits for the first time.
Yet under the newly-revised Environmental Protection Law, which only allows
NGOs with five years experience in environmental protection work to file such
lawsuits, TEPF would not have qualified. Pushing the irony further, Friends of
Nature, a grassroots, independent environmental NGO established 20 years ago, filed a lawsuit in Taizhou against a chemical company involved in the
same pollution case, but the local court refused to hear the case, saying
Friends of Nature had no standing to initiate the lawsuit even though it had 19 years
more experience than TEPF. The Taizhou case highlights the privileged position
occupied by GONGOs which are used by the Chinese government to manage social
and environmental issues while appearing to be tolerant of NGO-type
organizations.

In this context, the Fujian lawsuit is a landmark case because two
independent environmental NGOs with no connection to the government managed to
win in a country where the Communist Party seeks increasingly to guide civil
society along the correct path. It will be a case that other independent
environmental NGOs can build on as a model of, and inspiration for, grassroots
activism. Friends of Nature, in particular, is known to many as one of the
first independent environmental NGOs, founded by Liang Congjie and friends (Liang Xiaoyan, Wang Lixiong, and Yang Dongping) in
1995 and has been involved in many of the major citizen-led actions on behalf
of the environment in China over the last two decades. It's a shame that Liang
Congjie, who died at the age of 78 in 2010, did not live to see this day. He
would have been proud of the organization he helped to start.

Sunday, November 15, 2015

Reading about the atrocities committed in Paris
yesterday, I was struck by a parallel between the Paris attacks and the recent
crackdown on China's civil society. This parallel had to do with how civil
society should respond to terrorism of all kinds, whether domestic, transnational or state terrorism. What we saw in Paris appeared to be a blend of domestic and transnational terrorism. But terrorism
can also be of the state variety carried out by state actors such as the police
and government security forces against its citizens.The latter is what Chinese civil society –
NGOs, human rights lawyers, labor activists – is currently facing in a
sustained clampdown that is well into its second year.

In formulating an answer, one thing to keep
in mind is the important role the media plays in conditioning our response. Unfortunately,
much of the media magnifies the effect of terrorism by focusing on the violence
and brutality of the action, and instilling a sense of fear and helplessness
with headlines like “Paris Terror,” “Terror in Europe,” “An Awful Realization:
Terror Strikes Again” and the unfortunately-worded “Massive Muslim Terror
Attack in Paris.”

The same is true of the way media and human
rights organizations often report on the Chinese government’s crackdown on
activists and NGOs. The narrative is to portray them as victims who are
helpless in the face of overwhelming state power. To be fair, we need to be informed
about civil society's plight so that it can receive attention and support from the
international community, and both the media and human rights organizations play
an important role here. But the narrative can become so one-sided
and deafening that it can have a paralyzing effect on both activists and
bystanders. People and organizations stop what they are doing or change their
usual routine, lie low or head for shelter to escape the impending storm. But
this behavior is precisely what terrorists intend, to instill a sense of fear
and helplessness among citizens so that they will give into the agenda of those
who seek to terrorize them.

The way for citizens and civil society
organizations to respond to terrorism is to resist this narrative, and stand
firm, resolute and optimistic in the face of terrorism, and continue to work with
others to move forward on making the world a better, more equitable and yes
more hopeful place.After the Paris attacks, there will be a great deal of work to be done in advancing that agenda. Finding and working
hand-in-hand with like-minded people is important because solidarity provides
the empowering effect needed to resist fear, helplessness and anomie.

I realize this may all sound obvious but it
is actually very difficult to do when the dominant narrative does not encourage
this mindset. These days I meet with funders, and representatives from foreign
governments and international organizations, who tend to treat us like victims,
buying into the narrative that the space for civil society is closing. We are
viewed with sympathy, but when we say we are finding ways to move our work
forward and are looking for funding, our remarks are received with skepticism
and we’re told how many Chinese organizations cannot carry out their projects
because of the crackdown. I almost want to say, listen we have a labor movement to build and it can't wait. But I sense a passive response from us is
what is expected, while an optimistic, defiant response gets challenged instead of
supported.

So I was happy today to find a sign that
some (many?) citizens in Paris are responding to the attacks with great courage and
optimism. That sign was not in any headlines but buried deep in the middle of
one article on the Paris attacks. A French woman who was on her morning run was
asked for her reaction to the attacks. She said she was still trying to process
the events, but without succumbing to fear. “This is not Iraq or Afghanistan. We
are not at war here. We need to stay confident and hopeful.”

That quote beautifully expresses the
attitude that civil society can and should take in response to terrorism.

Thursday, November 12, 2015

Looking
back at this update that I wrote for the International Center for
Not-for-Profit Law back in 2014, I see that I was on target about the Charity
Law although understandably pessimistic that a draft would appear in the next
year or so.I was also right in reading
the signals about upcoming regulation for international NGOs but failed to
anticipate the Xi Jinping administration’s embrace of national security priorities
in 2014, and what that embrace would mean for international NGOs in the form of
the Overseas NGO Management Law that came out in draft form in early 2015.

January-March 2014

In March
of 2014, the annual “two meetings” (lianghui) – the second session of the 12th
National People’s Congress (NPC) and the Consultative People’s Political
Conference (CPPCC) – were held in Beijing. The NPC session’s focus was on
introducing a legislative agenda to carry out the broad policy pronouncements
issued by the Third Plenum of the 18th Central Committee which met
earlier last November.According to
various sources, that agenda includes working on the revision of the
registration and management regulations for social organizations, the Charity
Law which has been in limbo for almost 10 years, and various other policies on
tax exemptions to encourage charitable donations, government procurement of
services, strengthening trust in charitable organizations through third-party
evaluations, improving transparency of foundations and nonprofits, and
promoting religious charitable activity.

1) Formulating a Charity Promotion
Law(cishan shiye cujin fa, 慈善事业促进法)
to regulate charitable organizations and undertakings. The
Charity Promotion Law has been referred to in other discussions in this Note as
the Charity Law. Li Liguo, Minister of Civil Affairs, recently revealed that
the Charity Promotion Law was placed on the NPC Standing Council’s agenda for
this year, although observers believe it will be several years before the Law
will be passed[1].

3) Relaxing and clarifying policies
regarding the development of civic charitable undertakings [民间慈善事业],
as well as giving tax breaks to promote those undertakings. In January of 2013,
the Ministry of Finance and State Administration of Taxation issued more clarification
on tax exemptions in the form of a Notice on Management Issues
Related to Determining Qualification for Tax-exempt Nonprofit Organizations.

The
spring months have been a tumultuous period for civil society in China. With
the launching of an unprecedented high-level anti-corruption campaign by the
new administration under President Xi Jinping, the 25th anniversary
of the June 4, 1989 protests looming, large-scale strikes at the IBM and Yue
Yuen shoe factories in Guangdong in March and April, and a number of bombings
and attacks in the spring that the Chinese government attributes to Uyghur
separatists, the security situation for civil society groups and activists
became increasingly tense. During the April-July period, a number of lawyers
and other civil society activists were detained or arrested and charged with
“gathering to create a public disturbance” and other crimes. The well-known
anti-discrimination NGO, Yirenping, had its Zhengzhou office
raided
in June and again in July. In addition, a number of Christian churches in the eastern province of
Zhejiang were demolished. The scope of these detentions and arrests was
substantial – some say unprecedented – and included groups and activists who
had not experienced repression in the past.

At
the same time, we continue to see some progress on the legislative front such
as the newly-revised Environmental Protection Law which allows a broader range
of NGOs to file environmental public lawsuits, mention of the Charity Law being
placed on the national legislative agenda, and signals about formulating
regulations for international NGOs.

On
April 24, 2014 the 8th meeting of the Standing Committee of the 12th National
People’s Congress approved the revised Environmental Protection Law which will
come into force in 2015. This Law went through several drafts. Earlier drafts
elicited criticism from civil society organizations because they placed narrow
restrictions on NGOs that were qualified to file environmental public interest
lawsuits. Thus, in the first two drafts of the law, only NGOs with close
government ties such as the All-China Environment Federation (a GONGO
established by the Ministry of Environmental Protection) were allowed to file
lawsuits. Following debates and suggestions, a third draft was presented in
August 2013 according to which new actors could file a lawsuit if they
respected the following conditions: being registered with a Civil Affairs
Bureau above the city level, being active for at least five years, and have “a
good reputation.”In the final draft, presented
in March of 2014, “good reputation” was replaced by “no record of illegal
activity,” thereby widening the scope of actors entitled to file public
interest environment lawsuits[2].

Reports also came out about the drafting of the Charity Law
which has been placed on the National People’s Congress (NPC) legislative
timetable. The NPC Domestic Affairs Legal Committee (全国人民代表大会内务司法委员会）has taken the
lead in the drafting of the Charity Law and is expected to submit it for
consideration in 2015 if the legislative process proceeds smoothly. Legal
scholars such as Jin Jinping, director of Peking University’s Civil Society
Research Center, spoke in favor of legislation protecting one’s right to engage
in charitable acts. She hoped that legislation should give communities more
freedom, and stressed that when considering legislation that has to do with
liability, supervision, management, and taxes, it was important to consider
whether the Charity Law would promote or “imprison” one’s right to do good[3].

There has also been more high-level
signaling that new regulations may be in the works that will make it easier
for international NGOs to gain legal status. In May of 2014, the newly-formed
National Security Commission headed by President Xi Jinping ordered a review
and investigation into the operations of international NGOs working in
China, particularly those with projects in rural areas. The text noted that the
investigation’s purpose was to “lay thefoundation for furtherstrengtheningstandardized management.” This
suggests that the investigation should be seen not so much as a crackdown on
international NGOs working in China, but as part of a broader initiative to
strengthen regulation over international NGOs which, in the past, have operated
largely without much government regulation or oversight. Given the 2013 news of
impending new regulations for international NGOs, it may very well be that this
investigation will help to shape the content of those new regulations.

These
positive legislative initiatives accompanied a wave of optimism following the
Third Plenum Decision of November of 2013 and the NPC meeting in March of 2014,
both of which signaled greater government support for civil society through the
moniker of “social governance.” But true to the Communist Party leadership’s
penchant for contradictions, these measures were followed quickly by a more
repressive period in which many civil society activists, lawyers and NGOs came
under greater scrutiny in the run-up to the 25th anniversary of the
June 4, 1989 protests and a substantial number were detained, investigated, harassed or arrested.

Wednesday, November 11, 2015

In a
difficult year for civil society, we have two pieces of good news for a change. One is that
the Overseas NGO Management Law (sometimes translated as Foreign NGO Management Law) draft has yet to be reviewed a third time by
the National People’s Congress Standing Committee. Generally after a draft law
is reviewed a third time, it is voted on unless significant problems or
controversies emerge.

A
comparison with the National Security Law is instructive. Both the second draft
of that law, and the second draft of the Overseas NGO Management Law, came out
about the same time in May for public comment. The National Security Law draft
was reviewed a third time at the next Standing Committee meeting on July 1, voted on and
passed overwhelmingly with only one abstention. The Overseas NGO Management Law
draft, in contrast, has not been mentioned at any of the subsequent Standing
Committee meetings. Since the Standing Committee meets every other month, there
is still a chance that it could be reviewed in December. Still the delay
suggests that the many comments on the draft law coming from both the foreign
NGO and business community, and the concerns voiced by various government
leaders at the highest levels in both the U.S. and Europe have been heard. In
his private meeting with Xi Jinping in Washington, President Obama was said to
have voiced his concerns about the law. President Xi said he supported a law to
regulate overseas nonprofits, but did not say that he supported the law in its
current form. In addition, my sources tell me that there is considerable
dissension among various Chinese government agencies over this draft law. In
short, there seems to be enough problems and controversies to delay this draft
law. It may not be reviewed until next year, if then, and when it is, it may
contain some significant revisions. Stay tuned.

The
second piece of good news is the long-awaited arrival of the first draft of the
Charity Law for public comment[1].
This law has been in the legislative pipeline since 2005 and it has become
almost a yearly ritual to predict the law’s appearance and then to be
disappointed. It looks that streak of bad luck is about to come to an end. On
first glance, the Charity Law draft looks quite good. I’ll write in more detail
about it in another post. But let me note three major highlights of this draft
law.

One
is that it upholds a quite expansive view of charity or philanthropy, what the
Chinese call “big philanthropy” (da cishan) in going beyond traditional notions
of philanthropy such as poverty alleviation and disaster relief to including
the promotion of education, culture, sports, health, environmental protection
and “other activities consistent with the societal public interest”.

Second,
it appears to allow for the direct registration of charitable organizations,
thereby doing away with the old “dual management system” in which NGOs had to
find a professional supervising agency before they could register with Civil
Affairs. The language in the draft could be clearer on this point, but an article
posted on the NPC’s website confirms that this is the intent.

Third,
the last article in this draft law notes that “even when a non-profit
organization with the purpose of conducting charitable activities is not
registered, it can still conduct charitable activities within its limits, but
shall comply with the relevant provisions of this Law and benefit from relevant
rights and interests according to law.” In the past, I have never seen such a
clause appear in any Chinese regulations concerning NGOs. Instead, one usually
sees regulations appear (such as a Guangzhou draft regulation which came out
last year and has not been heard of since) banning “illegal social
organizations (the official Chinese term for NGOs),” referring to organizations
that operate as NGOs without having registered. What this clause essentially
says is that unregistered NGOs should not be considered as illegal and should be
allowed to carry out charitable activities. That is a significant step forward.

Of
course, there are some problems with this draft such as continuing to insist on
a higher bar for charitable organizations that want to engage in public
fundraising, and too much emphasis on compelling charitable organizations to
disclose information. I’ll write more on these issues in a later post.

[1] I’m grateful to ChinaLawTranslate for providing a preliminary English
translation. This translation still has a number of problems but is the
only English translation available, and the nature of crowdsourced translations is that they will improve over time. China Development Brief should
have a more authoritative translation out soon.

Saturday, October 31, 2015

In the fall of
2013, observers and practitioners in China’s civil society were waiting for a
major policy statement from the Third Plenum of the 18th Central
Committee which was held the second week of November. The Third Plenum has
historically been the venue at which major policy decisions have been made.
Deng Xiaoping’s call for “reform and opening” was made at the Third Plenum of
the 11th Central Committee in 1978. Since this was the first plenum
to be held after Xi Jinping was confirmed president in March, it was seen as
Xi’s stage to lay out his policy blueprint for the next few years. People were particularly
eager to see what the Xi Jinping administration’s policy would be toward the
various reforms and experiments that had been taking place in the NGO sector over
the last few years[1].

The Xi
administration’s answer came in the form of the Decision of the Central
Committee of the Communist Party of China on Some Major Issues Concerning
Comprehensively Deepening the Reform (中共中央关于全面深化改革若干重大问题的决定) which was adopted by
the Third Plenum of the 18th Central Committee on November 12, 2013. The Third
Plenum Decision received the greatest attention for its calls for greater
liberalization of the economy, and more use of market levers. But it also
called for a bigger governance role for the market, private sector and
non-state actors, including social organizations, the official Chinese term for
NGOs. Of course, the actual impact of these broad policy pronouncements will
depend on the details of the implementing laws and regulations that follow.
Still, as Xu Yongguang of the Narada Foundation argued in one of the more optimistic assessments, there are a number of
areas in the Decision that should raise the spirits of those in the NGO sector.

Perhaps the
most important is a change in tone when talking about the role of society and
social organizations in governance. Previous high-level speeches and documents
have used the term “social management innovation” which emphasized the need to
manage society and social organizations. The Decision replaced that term with
“social governance,” a term which has never been used before in official
discourse but one which more liberal-minded advisors have advocated for because
it places society and social organizations more on a par with government. The
notion of “social governance” recognizes that social actors have a part in
governance alongside the government and business, and that there needs to be
greater cooperation between these different stakeholders if China’s development
is to become more sustainable and inclusive.

There is thus
an entire section of the Decision (Section 13) devoted to “Making Innovations
in Social Governance”. Instead of talking about the need to manage social
organizations, that section talks about achieving a “positive interaction
between government administration on one hand and social self-management and
resident self-management on the other.” It also talks about enlivening the role
of social organizations by further separating government from social
organizations, encouraging government contracting of services to social
organizations, making it easier for social organizations to register, and
improving tax preferences for charitable donations. The Decision also calls for
social organizations to get involved in cultural and educational activities,
and for community-level and social organizations to be consulted on policy
decisions and their implementation.

In short, the
Decision not only gives a green light to the reforms and experiments that have
been going on in the NGO sector at the local level over the past few years, but
also provides a macro framework decided by the top leadership (what the Chinese
call “high-level design” 顶层设计) for envisioning how
those reforms should proceed.

The question
now is what actual implementing laws and regulations will come out of the Third
Plenum? The Decision opens up a number of very broad areas for reform that need
to be fleshed out. How will the separation between government and social
organizations take place, and how will the roles and responsibilities of each
be clarified and enforced? How will government contracting be carried out and
what type of social organizations will be eligible to apply? How will the registration
of social organizations be simplified and streamlined and what type of social
organizations will be eligible? Complicating these questions is another broad
reform being carried out to transform and streamline the government by
detaching public institutions from the government system and turning some of
them into social organizations. This reform will bring a whole new group of
actors into a very fluid, quickly changing NGO sector.

The outlines of
some of these implementing policies have already begun to take shape. On September
26, 2013, the State Council General Office issued its Guiding Opinions on
Government Purchasing Services from Social Actors (国务院办公厅关于政府向社会力量购买服务的指导意见). The State Council’s Institutional Reform and
Functional Transformation Plan (国务院机构改革和职能转变方案) also lists three other
tasks to be carried out. One is experiments to separate trade associations and
chambers of commerce from their government supervisors so that they can truly
play a service function in responding to their members needs. The second is to
enable four categories of social organizations to directly register by revising
the Regulations for Registration and Management of Social Associations (社会团体登记管理条例), and similar regulations for the two other categories of
social organizations. The third is to come up with other specific measures for
strengthening social governance.

These three
tasks were to have been carried out by the end of 2013, but it appears they are
behind schedule. The revised Regulations for Registration and Management of
Social Associations (社会团体登记管理条例) have still not come
out, but recent reports indicate it is still under revision and should come out
first, sometime in 2014, followed at some later date by revised regulations for
the other two categories of social organizations, as well as other measures
related to social governance. The year 2014 should thus be a busy and fruitful
one for the NGO sector on the policy front.IF the Third
Plenum Decision was the only major event in the last few months, then Xu
Yongguang would be right about a spring thaw for China’s civil society. But
this same period has seen other events cast a chill on the coming spring. These
include a clampdown on prominent bloggers and the arrest or detention of some
well-known activists, scholars and businessmen. In January of 2014, Xu Zhiyong,
founder of the NGO, the Open Constitution Initiative (Gongmeng) and one of the
drivers of the New Citizen Movement, was tried and sentenced to four years in prison for
“gathering a crowd to disrupt order in a public place.” That same month, the
moderate Uighur intellectual and economics professor, Ilham Tohti, was detained in Beijing on charges of “inciting
separatism and ethnic hatred” and in September sentenced to life imprisonment.

These events
show that even as the government has taken the first, important step towards
recognizing the value of civil society, it still has a long way to go in
creating a level playing field and protections for the many, diverse
individuals and organizations in China that work to create a more just and
sustainable society.